Supreme Court Justice Ruth Bader Ginsburg on Thursday provided an unusual peek behind the scenes at how the court did its work this term.
It’s true, she said, that the liberal justices tried to be disciplined about having their majority opinions, and even their dissents, speak with one voice in one opinion. “The stimulus,” she said, “actually began many, many years before … when the court announced its decision in Bush v. Gore.” That was the decision in which the Supreme Court, by a 5-4 vote, put an end to the dispute over the 2000 election returns in Florida, resulting in George W. Bush becoming president.
The time pressure in the case was excruciating, with the court issuing an opinion just a day after oral arguments, and, as Ginsburg put it, the four liberal members of the court “were unable to get together and write one opinion.” Indeed, each wrote a separate dissent, resulting in such confusion that, as she pointed out, some early press accounts erroneously reported that the decision was 7-2, not as it in fact was, 5-4.
After that experience, “we agreed,” said Ginsburg, that “when we are in that situation again, let’s be in one opinion.” It’s important, she added, because the public and the lower courts need to know what the court has done or not done. And neither lawyers nor judges will stick with opinions that go on and on.
“If you want to make sure you’re read, you do it together, and you do it short,” she said. Otherwise people will neither read you nor understand what you are saying.
Ginsburg’s remarks were part of an interview with this reporter at an event celebrating the Ambassador of the Arts Award she received from the Washington Performing Arts Society. The event was hosted by Japanese Ambassador Kenichuro Sasae and his wife and featured a performance by Ginsburg’s daughter-in-law, acclaimed soprano Patrice Michaels.
Ginsburg seemed to acknowledge that the unity policy that the more liberal members of the court have tried to follow since Bush v. Gore worked this term with stunning success, especially as contrasted with work of the court’s more conservative justices. The four most conservative members of the court wrote a total of 78 dissenting and concurring opinions, as contrasted with the four liberals, who wrote a total of 27.
So why does Ginsburg think that her conservative colleagues were so verbose, or as she put it, “Why each of the [conservative] prime dogs found it necessary to do his own thing?”
Ginsburg just smiled enigmatically, saying, “Next term I think you’ll see some of my colleagues will be more disciplined.”
I also asked Ginsburg about the tone of dissenting opinions, since this year some of the conservative dissents were unusually harsh and even personal in tone. So, when she is writing a dissenting opinion, what does she decide to take out of her early drafts?
Ginsburg said people sometimes characterize her opinions as “dull” because she doesn’t use splashy language. But, she added, “I think some of my colleagues’ spicier lines are distracting. They draw attention away from what the justice is trying to say.”
And she observed that although several of the court’s conservatives went to great lengths to denounce Justice Anthony Kennedy’s majority opinion legalizing same-sex marriage nationwide, Kennedy simply didn’t respond, letting the criticism roll off his back, and the opinion to “speak for itself.”
Indeed, if any of the other four justices in the majority were tempted to write something additional, they stayed their hand and spoke with one voice — the Kennedy opinion.
That, she said, is “more effective.” Of course, she added, you do have to answer some of the main points in a dissent, but you don’t have to answer every little argument or swipe.